F 

-B7W6Z 



BOUNDARY LINE 



BETWEEN THE STATES OF 



MARYLAND & VIRGINIA, 



Before the Board of Arbifrutors. 



Synopsis of Argument made by Mr, PINKNEY 

WHYTE, of Counsel for Maryland. 

August 26th, 1876. 



Qass 




Book ^ n i/l/fe . 



/ 



BOUNDARY LINE 

BETWEEN THE STATES OF 

1173 



MARYLAND & VIRGINIA. 3 ^^ 



Before the Board of Arbitrators. 



Synopsis of Argument made by Mr, . PINKNEY 

WHYTE, of Counsel for Maryland. 

August 26th, 1876. 



BOUNDARY LINE BETWEEN THE STATES OF 
MARYLAND AND VIRGINIA. 



Short notes of the argument of Mr. Whyte on behalf of Maryland. 



Under the Act of 1876, Chap. 188, this Board of Arbitrators 
is vested with power so far as Maryland is concerned, (and 
Virginia hath done the like in her Act of Assembly,) "to ascer- 
tain and determine a true line of boundary between the States." 
The award to be final and conclusive : Provided, however, that 
neither the States nor the citizens thereof, shall, by such decision 
be deprived of any rights and privileges enumerated in the com- 
pact between the States, entered into in the year Seventeen 
Hundred and Eighty-five. 

To ascertain that true boundary-line, you are possessed of all 
the functions of the Supreme Court of the United States, and in 
its determination, will you not be governed by the same general 
principles of law which that court would deem applicable to 
such cases? 

The documentary evidence, furnished by the charters and 
other state papers; the joint action of the colonies; the legisla- 
tive proceedings; long continued possession and exercise of 
jurisdiction; the conventions and compacts; and, w/iere these 
require secondary testimony^ then traditions or that kind of evi- 
dence, which is admissible ex necessitate, are the aids upon 
which reliance is to be made for just and reasonable conclusions. 



The subject-matter of dispute can be best presented by con- 
sidering : 

1. Where is the true line on the Potomac? 

2. Where the line should run from the western shore of the 
Chesapeake Bay to " Watkin's Point?" 

3. And lastly, the line from Watkin's Point, east to the ocean? 



PART I. 

POTOMAC RIVER BOUNDARY. 

Maryland claims under her original Charter, granted to Lord 
Baltimore by Charles I, and which passed the Great Seal, on 
the 20th June, 1632, that the line is on the south bank of the 
Potomac, running down to Cinquack, (now Smith's Point,) then 
by the shoi-test line to Watkin's Point on the eastern shore, and 
thence by a straight line, through Cedar Straits, to the ocean. 

This is Maryland's claim under the Charter. This line will 
be shown to be modified by the subsequent action of the States. 

For a proper understanding of the right of Maryland to the 
line, as claimed, it is necessary to review as briefly as possible^ 
the circumstances, under which Lord Baltimore obtained the 
grant of Maryland. In the language of Mr. Justice McLean, in 
the Mass. and R. I. case, let me say, " that in looking at trans- 
actions so remote, we must, as far as practicable, view things 
as they were seen and understood, at the time they transpired. 
There is no other test of truth and justice, which applies to the 
variable condition of all human concerns :" 4 Howard 629. 

From the best histories; the following facts are drawn : 

In 1606, King James I divided the territory, which had been 
previously covered by the grants to Gilbert and Sir Walter 
Raleigh, into two districts — the Northern, called North Vir- 
ginia, extending from the mouth of the Hudson River to New- 
foundland, was granted to the Plymouth Company ; while the 
Southern, called South Virginia, extending from Cape Fear to 
the Potomac, was granted to the London Company. 



The London Company plantedacolony at Jamestown in 1007. 

Robertson's History of Virginia, page 59; Smith's History of 
Virginia, Vol. 1, Book 3, Ch. 1, page 149; 1 Hazard's State 
Paper 50-58. 

This Company had all the lands north and south of Cape 
Comfort, for 200 miles eaeh way. 

The London Company became divided in its Stockholders 
into two political parties, who, by their mismanagement and dis- 
sension aroused the King's ire. 

Commissioners were appointed to examine into its affairs, and 
reported against it. A surrender of the charter was demanded 
and refused, whereupon proceedings were instituted by quo war- 
ranto, and the charters, which had become three in number, 
obtained in 1606,1609 and again in 1611, Avere revoked in 
1 624, by the Court of King's bench : Robertson's America, p. 
103; Rymer, Vol. 17, p. 618, &c ; Hubbard's Rep., 28 Cong., 
1st Session, p. 28, filed by Virginia's Counsel. 

Stith in his history of Virginia, pp. 329, 330, doubts if this 
judgment ever passed; but Bancroft in a note to page 192 of his 
1st Volume, of the history of U. S., says : "The doubts may be 
removed." Before the end of the same term a judgment was 
declared by the Lord Ch. J. Ley against the company and their 
charter, only on a failer or mistake in pleading." 

See a " Short Collection of the most remarkable passages 
from the originall to the dissolution of the Virginia Co.," Lon- 
don, 1651, p. 15 : 1 Hazard 191 ; 1 Proud's Pennsylvania 107 ; 
1 Story's Commentaries 27. 

" The plantation no longer governed by a chartered company 
was become a royal province, and an object of favor :" 1 Ban- 
croft 194. 

The Supreme Court of the United States, in a case before it, 
declared the effect of this judgment was to revest in the crown 
the poicers of government, and the title to lands within its limits : 
Johnston vs. Mcintosh, 8 Wheaton 578. 

Jefferson in his Notes on Virginia, p. 182, thus speaks of the 



transition of the colony from the hands of the company back to the 
crown : " The king and the company quarrelled, and by a mix- 
ture of law and force, the latter were ousted of all their rights, 
without retribution, after having expended £100,000 in estab- 
lishing the colony — without the smallest aid from government." 
" King James suspended their powers by proclamation of July 
15, 1624, and Charles the First took the government into his 
own hands." 

Thus the Virginia plantation having become a royal province 
with its ample limits, as defined in its charters, it was in the 
power of the king to grant such parts of its territory to indivi- 
duals, and establish proprietary governments, where he pleased. 

To fortify this view, I quote the language of the Supreme 
Court, in the case of Howard et al. vs. IngersoU et al., 13 How- 
ard 400. 

" It may be well here to say, that the power of the king to 
alter, change, enlarge or diminish the limits of his royal govern- 
ments in America cannot be denied." 

When, therefore, subsequently in 1632, the king granted the 
charter for the proprietary government of Maryland, to which 
fuller reference will be in a moment made, there could be no 
question, as to his authority to grant any part of the territory, 
covered by the annulled charters of the Virginia company. But 
while he could do this with a royal province, yet after he had 
granted and allowed the establishment of a proprietary govern- 
laent, he had no power to grant any part of the territory held 
under that proprietary government to any other persons or com- 
pany ; so that so /ar as the limits of Maryland loere abridged, 
the " Hopton Grant," referred to by Virginia's counsel, was an 
absolute nullity. The following quotation from the last-named 
case, in the Supreme Court, settles that point. 

Speaking of the kinds of government in America, the court 
adds, " They were royal and proprietary. In the former, the 
right of the soil and jurisdiction remained in the crown, and 
their boundaries, though described in letters patents, were subject 
to alteration at its pleasure." * * * * 

" In proprietary governments, the right of the soil as well as 



of jurisdiction were vested in the proprietors. These charters 
were in the nature of grants, and their limits being fixed by these 
chatters could not be altered, but by their consent." 

The State of Maryland will not therefore, by its counsel, 
argue the portion of the case made by Virginia under the Hop- 
ton grant, as it is deemed not to have affected the bounds of 
Maryland in any way. 

For reasons growing out of religious dissensions in 1621, 
Sir George Calvert, then one of the secretaries of state, contem- 
plated a settlement of Catholics in America. Being in favor at 
Court, he obtained a special patent for the southern promontory 
of Newfoundland. 

It is fairly inferrible from the accounts of that time, that he 
was anxious to obtain control of the fisheries : see Chalmer's 
Annals 84, 100, 114, 115, 116, 130. 

In 1628 we find him opposing, by counsel, in the House of 
Commons, by permission, the bill for a freer liberty of fishing, 
because deemed by him subversive of his right, under the grant 
of this territory in Newfoundland : Chalmers, p. 201. 

That the value of the fisheries at that period was very highly 
estimated is clear, and that the obtaining of a large part of this 
trade was the objective point with Lord Baltimore can hardly 
be doubted. 

Captain Smith remarks, in his book, that according to Whit- 
borne's " Discovery of Newfoundlanil," the banks and coasts of 
that region were visited by 250 sail of English fishermen an- 
nually: Smith's Hist. vol. 2, p. 246, Richmond edition. 

After an earnest effort to make a settlement, and indeed after 
several naval encounters on that coast with the French fishermen, 
he gave up all hopes of establishing a prosperous colony in 
Avalon, and returned to England. 

His subsequent visit to the colony of Virginia, his inability 
to take the oath of supremacy, and his return again to England, 
and his effort to obtain a grant of Maryland, are all well known 
and referred to in the papers in this case. 



It seems apparent, however, that he still longed for the con- 
trol of the waters and the profitable enjoyment of the fisheries, 
and so he looked to the waters of the Chesapeake Bay and the 
Potomac and the Wighco and other rivers, tributary to that 
Bay, and sought to cover them by the grant he solicited from 
the Crown. 

At this period, the only settlements made in New England, 
under the Plymouth Company, were at Plymouth and Massa- 
chusetts Bay. The consent of the King was obtained by the 
first Lord Baltimore for the grant, but before the patent could 
be finally adjusted and pass the Great Seal, Sir George Calvert 
died, and the charter was published and confirmed subsequently 
for his son, Cecil Calvert : 1 Chalmers 201; 1 Bancroft 244; 
1 Bozraan's Hist, of Md. 271. 

The remonstrance of Virginia against the issue of the char- 
ter, through her commissioners in England was in vain, for, by 
the efforts of Strafford, the privy council sustained the proprie- 
tary charter. 

The original record of the charter, seems to have been made 
in the Rolls' office on parchment, on 20th June, 1632, in Latin, 
with the abbreviations common to that period. Although the 
effort has been made in some quarters to cast a shade over the 
correctness of the charter of Maryland, because of certain in- 
terlineations in a copy now to be found in the (colonial) State 
Paper office, it will be discovered on examination of the DeJar- 
nette papers, filed in this case, Nos. 20 and 21, on pages 15 and 
16 of " miscellaneous " documents, that the original record in 
the Rolls' Office, gives the patent in the abbreviated Latin, but 
the emendations referred to are found to be made in the coj^y of 
that record (to be found in the State Paper office, which purports 
to have been examined and corrected by the original, communi- 
cated by Mr. Beake from Lord Baltimore, July 5, 1723.) The 
two papers are entirely distinct, and the original record in the 
Rolls' office remains, as it was recorded in 1632. 



9 

Col. McDonald, tho Virginia Commissioner, did not find in 
1860 the original charter, as If passed the Great Seal, either in 
the Rolls' Office, the State Paper Office or in the British Mu- 
seum, but he did find in the Rolls' Office the record of the 
original charter, and al^o a copy of the charter, as it remains in 
the State Paper Office, which "'in 1723 was examined and cor- 
*'rected by the original to Lord Baltimore, under the Great 
" Seal of England, which had been obtained from Lord Balti- 
^' more through Mr. Beak, as by the endorsement copied from 
said book will to be seen :" McDonald's Repo)'t, March \), 1861, 
pcige 32; Virginia Reports of Boundary Line. 

It will be observed therefore, that the record in the Rolls' 
office is enrolled with the Latin abbreviations, but it is the cojyy 
of that record in the State paper office, in which the emenda- 
tions or extensions occur. 

Within two years after this charter passed the Great Seal, that 
is in 1634, and then in 1635, there appeared in London, the "Rela- 
tion of Maryland," which Avas subsequently used against Lord 
Baltimore in the Penn case, in which an English version of the 
charter appeared in these words, so far as the boundaries of the 
province are delineated, viz: 

Copy from the "Relation," 1635, Sabin edition. "All that 
part of a peninsula lying in the parts of America between the 
ocean on the east, and the Bay of Chesapeake on the west, and 
divided from the other part thereof, by a right line drawn from 
the promontory or cape of land called Watkins Point, (situate 
in the aforesaid bay near the river of Wighco,) on the west, into 
the main ocean on the east, and l^etween that bound on the south 
unto that part of Delaware Bay on the north, which lietli under the 
fortieth degree of northerly latitude from the E(piator, where New 
England ends, and all that tiact of land between the bounds afore- 
said, that is to say, passing from the aforesaid Bay, ca lied Delaware 
Bay, in a right line by the degree aforesaid, nnto the true meri- 
dian of tJie first fountain of the River of Potlowmack, and 
from thence trending toward the souih unto the further 
bank of the aforesaid river, and following the west and south 



10 

sides thereof unto a certain place called Cinqnack, situate near 
the mouth of the said river where it falls into the bay of Chesa- 
peake and from thence by a straight line unto the aforesaid promon- 
tory and place called Watkins Point, (so that all that tract of land 
divided by the line aforesaid, drawn between the main ocean 
and Watkins Point, unto the promontory called Cape Charles 
and all its appurtenances, do remain entirely excepted to us, our 
heirs and successors forever. 

In McMahon's, Md., page 1, almost the same words are used 
in the translation of the Latin charter, except that in describing 
the line across the bay, these words are, " And thence by the 
shortest line Unto the aforesaid place or promontory, called 
Watkins Point." 

And subsequently at page 18, McMahon, speaking of this 
charter says, " in all the grants of unexplored territory, made by 
the English Crown, at that day, there is not one so precise and 
definite in its terms, nor one which is less susceptible of mis- 
construction, than that of the province of Maryland." 

These translations differ so little from that of Mr. Tomlins, 
(page 210, of the Maryland statement), as in ray judgment to 
open no door for controversy, as to the actual meaning of the 
grantor in defining the bounds of his grant. 

The following additional copies of the charter are also referred 
to, as sustaining the above translation. 

Copy printed by John B:\sket, in 1723, contained in a book 
of acts of assembly of Maryland from 1692 to 1715. 

Charters of Va. and Md., juMuted in London, in 1766, for the 
library of Harvard College, and similar to that in the "Pela- 
tion," of 1635. 

The charter in Bacon's laws of Maryland in 1765. 

This copy is stated by Bacon to be printed from the "attested 
copy," taken in the year 1758, from the original record, re- 
maining in the Chapel of the Rolls and signed by Henry E,ooke, 
clerk of the Rolls, which was lent me by his Excellency Horatio 
Sharpe, Esq., Govenor of Md., from whence the same is tran- 
scribed." 



11 

Of this copy, Chalmers in his annals, page 220, says: 

"There is an excellent copy of the charter taken from the 
records in the Chapel of the Rolls, annexed to Bacon's laws of 
the province." There is a copy also in the Maryland Ent. 
Plant. Office, I. Y., page 1. 

It is remarkable, therefore, that no exception was taken to the 
copy of the charter, published in the Relation of Maryland in 
1634, only two years after its issuance. (See Shea's rei)rints of 
Southern Tracts, No. 1.) 

It is also very manifest, that the charter as recorded in 1632, 
remained in the Roll's office in 1758, as copied by Bacon in 
1765, notwithstanding th«:^ assertion that there was a corrected 
copy of it in the State paper office, which had been so corrected 
in 1723 by direction of Lord Baltimore. Reference is also here 
asked to : 1 Hazard's St. Pap. 327 to 337; 2 Bozman's His- 
tory of Md., 9 to 21. 

Chalmers in his annals published in f» >VO'; thus speaks 
of this charter, "And that monarch in June, 1632, con- 
ferred on Cecilius, now baron of Baltimore, forever, that 
region bounded l)y a line, drawn from Watkin's Point, on 
Chesapeake Bay to the ocean on the east, thence to that part of 
the estuary of Delaware on the north, which lieth under the 
40th degree, where New England is terminated ; thence in a 
right line by that degree aforesaid, to the meridian of the foun- 
tain of the Potomac, thence following its course, by the farther 
bank to its confluence : Chalmers, p. 202. 

Story in his Commentaries on the Constitution, sec. 103, thus 
describes the bounds : 

The territory was bounded by a right line drawn from AA'^at- 
kin's Point on Chesajieake Bay, to the ocean on the east, thence 
to that part of the estuary of Delaware on the north, which 
lieth under the 40th degree, where New England is terminated, 
thence in a right line l)y the degree aforesaid, to the meridian of 
the fountain of the PotouKu;; thence following its course by 
the further bank to its confluence with the Chesapeake; and 



fi,.-^ 



kJ 



12 

thence to Watkin's Point : He gives, as authorities for this ; 1 
Hazard, 327 to 337; 1 Chalmer's 202; Charters of N. A. 
Provinces, 4 to , London, 1766. 

Frost thus describes it : " He obtained from Charles the First 
the gift of an extensive region, which Virginia had fondly che- 
rished as her own, extending from the southern bank of the Poto- 
mac, northwards to lhe 40th degree of hititude, and thus inchid- 
ino- the upper part of the Bay of Cliesapeake, and the whole of 
that of Delaware :" Frost's Book of the Colonies, p. 131. 

And to the comments on it in McMahon's Md. 133, 183, 
and Ogilby's America. 

The title of Maryland being thus put upon the charter, it is 
proper to begin the examination of its southern boundary, first 
upon the line of the Potomac. 

The Latin text of that boundary is in these words, viz. : 
"Transeundo a dicto estuario vocato Delawur Bay, recta linea per 
o-radum prffidietum usque adverura Meridianum prirai fontis 
fluminis de Pottowmack, delude vergendo versus Meridiem, ad"* 
"intenorenT ripam et eam sequendo qua plaga occicantalis et 
Meridionalis spectat, usque ad locum quendam appelatum Cin- 
quack." 



U^ 



Public Eecord Office. Copy, Patent Roll, 8 Charles the First, 
part 3, No. 5. 

Certified, 24th May, 1871, by H. J. Shavpe, 

Assistant Keeper of Public Records. 

This copy reads : — 

" Et earn sequendo qua plag occidental t meridional spectat, 
usque adlocum quendam appellat Cinqusek ppe ejusdem fluminis 
ostiAm scituat ubi in pefat sinu de Chessopeak evolvit ac inde 
D lineam brevissimam usqe ad pcdcm Promontor sitw. locum 
vocat Watkin's Point." 

This corresponds with the copy from the Rolls' Office, as fur- 
nished by Mr. Dejarnette, and is similar to that from which the 
" Tomlin's translatiou" is made. 



13 

See Md. Statement, p. 220 ; also DcJarnette's Boundary Line, 
Miscellaneous, p. 16. 

It is impossible to doubt, that under this description the 
southern bounds of Maryland extended to the south bank of the 
Potomac. That " ulteriorem ripam" means the farther or 
southern bank is plain ; and that " sequendo earn," (the latter 
rclatin<>; to and agreeing in gender with "ripam,") means, "fol- 
lowing that bank," to Cinquack, on the southern shore of the 
river, is really, with due respect to the opinion of others, 
scarcely open to disputation. 

The effort at the translation of the Latin, made in the final 
report of the Virginia Commissioners to the Governor, January, 
1874, will hardly add much scholarly fame to the translator. 
It is necessary to interpolate words to reach the desired result, 
and when attained, the conclusion is by no means a very sensi- 
ble one. 

How the " western shore looks towards the southern" (shore,) 
iiuto a certain place called Cinquack, passes comprehension. 
Such a translation is based upon the theory, that " spectat" 
should be " looks" in English, which, in some connections 
would be correct ; but when used in relation to localities the 
verb " specto" means " to be situate," or " to lie," and thus, 
according to my translation of that part of the charter, refer- 
ring to the end of the line on the Potomac, the proper version 
would be this, viz. : " Et eam sequendo, qua plaga occidcntalis 
et meridionalis spectat, usque ad locum quendam, appellatum 
Cinquack propc ejusdem fluniunis ostium scituatum, ubi in prse- 
fatum sinuni de Chesapeake evolvitur," and "following it (the 
bank) to where the western and southern shore is situate (or 
lieth) as far as a certain place called Cinquack, situate near the 
mouth of the same river, where it discharges itself into the 
aforesaij] Bay of Chesapeake." 

That the proper English word for "spectat" is used, can be 
seen by reference to Ainsworth's Latin and English Dictionary. 
A look at the map shows the western and southern shore at the 
mouth of the river to be the bank at "Smith's Point," or 
" Cinquack," and the northern shore to be at Point Lookout. 



14 

. In the ease of the Great Falls' Manufacturing Co. against the 
U.S. in Montgomery County Court, Maryland, November Term 
1858, Judge Brewer adopts the argument of the Counsel of the 
United States on this branch of that case, and says : " It was 
contended by the company, that the '• bank " and " river " were 
synonomous, and that 'following the same' meant the river, 
on which the preceding line terminated ; but it is evident the 
grant makes a distinction between them. If the word " same " 
could, in English grammatical construction refer to the "river" 
and not the " bank," the line might })ossiby run with the river, 
but a very ingenious criticism suggested by the Counsel for the 
United States, on the concordance of tlie words of the charter 
originally written in Latin, shows that the line was to follow 
the bank and not the river." 

" The first line from the "head waters of the river "runs" 
ad uUerlorem dieti fluminis ripain et earn seguendo," to wit, 
"ripam" with which "earn" agrees in gender, and not "flmnen" 
with which it could not agree; "earn" is feminine, "fltwien" 
is neuter : See dictionary, see also Ross' Grammar, &c., &q. 

" The termination of the line where the Southern and West- 
ern Shore is situate, is near the mouth of the river, and there 
the line terminates at the Chesapeake Bay, with a call for a 
" certain place, called Cinquack," on the south side of the River. 
Judge Brewer then concludes, "I think it is clear that Maryland 
'ncluded within its chartered limits, not only the bed of the 
Potomac River to low-water mark on the further side, but to 
the bank beyond, excluding the possession of any riparian rights 
of the State of Virginia." This conclusion of Judge Brewer 
is sustainable upon the clearest principles of law. 

The first call of the line on the river is for a point on the 
Southern bank, and the last call is also for a place on the same 
bank, distinctly defined below the mouth of the river. This 
indicates the plain intent to give the whole of the Potomac 
River to the proprietary of Maryland, and to confine the Royal 
Colony of Virginia to the southern "bank." 



15 

There was a manifest rlistinction between the case, relating 
to the territory north-west of the Ohio, referred to by the Vir- 
ginia Counsel, as Handlei/s Lessee vs. Anthony, 5 Wheaton 379, 
and the case of Georgia, cited as Hoioard and others vs. Inger- 
soll, et at., 13 Howard 400 ; for in the hitter case, the call was for 
the "bank" of the river, and restricted the limits of the ceded 
territory to the western bank of the Chattahooche River. 

Or to state the matter more fully. 

In Handley^s Lessee vs. Anthony, it was not the ianZ- of the river 
but the river itself, at whicli the cession of Virginia commenced. 
She conveyed to Congress all her right to the territory situate, 
lying and being to the northwest of the Ohio Kiver. And this 
territory, according to express stipulation, is to be laid off into 
independent states. 

These states then are to have the river itself, wherever that 
may be, for their boundary. 

Where a great river is the boundary between two nations 
or states, if the original property is in neither, and there is no 
convention respecting it, each holds to the middle of the stream. 
But Avhen, as in the case of the northwest territory, one state is 
the original proprietor and grants the territory on one side only, 
it retains the river witiiin its own domain, and the newly created 
state extends to the river only; the river, however, is the 
boundary. Affirmed in Hoivnrd vs. Ingersoll, 13 How. 412. 

When Georgia ceded to the United States, all the land situa- 
ted on the west of a line running along the western bank of the 
( 'hattahooche river, she retained the bed of the river and all 
the land to the east of the line above mentioned. 

The river flows in a channel between the two banks, from 15 
to 20 feet high, between the bottom of which and the water, 
when the river is at a low stage, there are shelving shores from 
thirty to sixty yards each in width. 

The boundary-line runs along the top of the high western 
bank, leaving the bed of the river and the western shore within 
the jurisdiction of Georgia: Howard vs. Inr/ei-soll, 13 How. 381. 

Binney's ca^e, 2 Bland's Chancery Report, 127, is also cited. 



16 

as showing the construction of Chancellor Bland, given to the 
charter in the determination of certain claims to water-rights, 
and alter stating the bounds of the states, he adds : 

"To the full extent of this call for the right bank of the 
Potomac, Maryland has always held, and nnderthat holding all 
the islands in the river have been granted by patent from the 
Land Office, or by legislative enactments or titles derived from 
this state." 

The Attorney General of A'^a., says that Maryland never asserted 
her claim to the Potomac; she did soasacolony, and shedid it in 
plain terms afterwards as a state : Doc's, West and South Bdy 
pages 6 & 9. 

The limits of Maryland must have been well considered and 
its lines distinctly laid out upon information, as accurate as it 
was possible at that date to obtain. 

The Potomac river had been described by Smith in his 
History of Virginia: 2 Book, page 118; as " navigable for 140 
miles." Then naming the tribes inhabiting the bauks, after 
describing the Wighcocomicos at the very entrance on the south 
side, and giving accounts of others, he says: "Here the river 
divides itself into three or four convenient branches. The greater 
of the least is called Quiriough, trending northwest, but the 
river itself turneth northeast and is still a navigable stream." 
And then, speaking of the map, accompanying his history, he 
states : 

" What I did with these small means, I leave the reader to 
judge, and the map I made of the Country, which Is but a 
small matter in regard to the magnitude thereof:" Book 2, p. 119. 

McMahou in his History, also remarks in a note, that these 
bounds were evidently framed from a Map, accompanying 
" Smith's History of Virginia," and he adds, as to the map, 
" which, as to the Bay (Chesapeake) and the country adjacent to 
it and the mouth of its tributary streams, even to the mouth of 
the Susquehanna, may safely challenge a comparison in point of 
accuracy, with the maps of this day." 

Says Grahame, "With prodigious labor and extreme peril he 
visited every inlet and bay on both sides of the Chesapeake, 



17- 

from Cape Charles to tlie river Susqueiianna: he .sailed uj) many 
of the great rivers to their falls and diligently examined the 
successive territories into which he penetrated, and the 
various tribes that possessed them. He brought back with him 
an account so ample and a plan so accurate of that great part 
of the American Continent now comprehended in the provinces 
of Virginia and Maryland, that all subsequent researches, which 
it has undergone have only expanded and illustrated his original 
view, and his map has been made the groundwork of all pos- 
terior delineations with no other diversity than what has inevitably 
arisen from the varieties of appropriation and the progress of 
the settlements : Hist, of U. S. from the Plantations of the British 
Colonies to the revolt. J. Grahame, vol. 1, page 47. 

Robertson also speaks of this Map, at page 72 of his History 
of America, in this manner : " His Map exiiibits no inaccurate 
view of both countries (Va. and Md.), and is the original on 
which all subsequent delineations have been formed." 

This map was used in laying out the bounds of the province : 
1 Boz. 107. 

That the line on the Potomac was well understood, at the 
time the charter was granted, is clear from the description in 
the "Relation" published in 1634, and continued to be so un- 
derstood as late as 1678, appears from the answers of Lord 
Baltimore, to the questions of the Lords of the Committee on 
Trades and Plantations, 26 March, 1678, wherein he says, that 
the boundaries, longitude and latitude of this jirovince are well 
defined and set forth in Hermann's map. (The Va. statement 
219 and 221 ; The map itself, 1670, A.) 

The map in Oglesby's America, is the same as that among 
the collection of Virginia's maps, called " Nova Terra iMariie 
Tabula," and the bounds of Maryland, as set out, on page 184 
of the history, are here referred to. 

The counsel for Virginia very truly say, that it is essential 
for us to maintain that the south bank of the Potomac River 
was our southern boundary under the charter, so that the line 
across the Chesapeake Bay to Watkin's Point, may start from 
Cinquack or Smith's Point j we have so maintained, and we have 



Ig 

heard nothing to justify any departure from that location, as the 
starting point across the Bay. Nowhere can be found any real 
facts to justify the inference, that either Point Lookout or the 
centre of the stream (Potomac) ever was considered as the initial 
point of the line across to the eastern shore. On this branch of 
the case the charter is clear, and the remarks hereinbefore made 
about the grant to Lord Hopton and others, in our judgment, 
disposes of the theory, that, because Maryland finally yielded to 
the recognition of the Fairfax Stone, as fixing its western 
boundary, it abandoned the claim to the whole Potomac River. 

It would be a waste of time here to enter into any details in 
reference to the various phases, which the controversy in regard 
to the territory in the northern neck of Virginia, from time to 
time, assumed ; it is sufficient, however, to affirm that the pro- 
prietary of Maryland, down to the period of the Revolution, 
asserted his claim, continually, to the '' first fountain of the 
Potomac where ever that might be :'^ McMahon 55. 

When Virginia assumed her position as a Sovereign State, 
she did not hesitate to recognise the bc»undaries of Maryland, 
as defined in the charter to Lord Baltimore. So in the Consti- 
tution, adopted in June 26, 1776, there is a clear cession to 
Maryland, of all its right to the territory contained in its 
charter, notwithstanding any claim which Virginia might have 
previously set up, "except the free navigation of the Potomac 
*' and Pocomoke, with the property of the Virginia shores or 
"strands bordering on either of the said rivers, and all improve- 
" ments Avhich have or will be made thereon." 

The Declaration of Independence recognized the same bounds 
in the States, as they held as colonies. 

The Constitution or Form of Goverment agreed upon by the 
Delegates and Representatives of the several counties and cor- 
porations of Virginia, (unanimously adopted June 29, 1776, 
"21. The territories contained within the charters erecting the 
Colonies of Maryland, Pennsylvania, North and South Carolina 
are hereby ceded, released and forever confirmed to the people 



19 

of these Colonies respectively, with all the rights of property, juris- 
diction and government, and all other rights whatsoever, which 
might at any time heretofore have been claimed by Virginia, 
except the free navigation of the Potomac and Focomokc, with 
the property of the Virginia shores or strands, bordering on 
either of the said rivers, and all improvements which have or 
will be made thereon. The western and northern extent of 
Virginia shall in all other respects, stand as fixed by the char- 
ter of King James the first, in the year one thousand six hun- 
dred and nine, and by the public treaty of peace, between the 
Courts of Great Britain and France, in the year one thousand 
seven hundred and sixty-three; unless by Act of Legislature? 
one or more territories shall hereafter be laid off, and govern- 
ments established westward of the Alleghany mountains. And 
no purchase of lands shall be made of the Indian natives, but 
on behalf of the public by authority of the General Assembly." 
See " Va. boundary line, Miscellaneous, p. 53." Here, then, 
was a clear recognition of the right of Maryland to the terri- 
torial limits claimed under the charter, and while the people of 
Maryland were in the midst of the struggle for freedom, they 
did not hesitate, formally by resolutions in their Convention, on 
the 30th day of October, 1776, to protest against Virginia's 
pretentious to jurisdiction even over the "shores and strands" on 
the southern side of the Potomac: see Doc's western and south 
boundary, p. 9. 

And these territorial limits conceded in the constitution of 
Virginia of 1776 to Maryland, have been repeatedly recognized 
by its public acts : and in the latest edition of its Code, it there 
reaffirms them. 

EXTRACT FROM CODE OF VA. OF 1873. 

Title 1, Chapter 1, Territorial limits of Virginia and nature 
of the compacts with adjoining states. 

Page 104. "And the people of Virginia, Avhen they adopted 
their constitution or form of Government, on the 20th of June, 
1776, having by the 21st section thereof, ceded, released and 
confirmed to the people of ^Maryland, Pennsylvania, North and 



20 

South Carolina, such parts of the territory of Virginia as were 
contained within the charters erecting those colonies, with all the 
rights in those parts, which might heretofore have been claimed 
by Virginia, except the free navigation of the rivers Potomac 
and Pocomoke, ivith the property of the Virginia shore or strands 
bordering on either of the said rivers, and all improvements 
thereon, and having at the same time laid down in the said 
section that the western and northern extent of Virginia should 
in all other respects stand as fixed by the said charter of James 
the First, granted in 1609, and by the said treaty of peace, 
between Great Britian and France in 1763, unless by act of the 
legislature, one or more territories should thereafter be laid oif, 
and governments established westward of the Alleghany moun- 
tains. The General Assembly of Virginia doth hereby declare, 
that the territory of this commonwealth and the boundaries 
thereof, remain as they were after the said constitution was 
adopted on the 29th of June, 1776, except only as follows, that 
is to say : 

Then follows "Territory west of Ohio, &c." 
The line then ran to Cinquack. 

There never was any difficulty as to the location of Cinquack. 
It is plainly marked on Smith's map, and Lord Baltimore's map 
in his "Relation," and properly described in the Virginia pro- 
clamation of Governor Harvey, of 1638, as being the great 
Wicomico River, and the starting place of the line across the 
Bay: Wise's Book, page 58 and 59; Proclamation 1638, page 
15, Wise Book. 

After this Constitutional recognition, in 1777, the very next 
year, negotiations began for the settlement of all questions that 
might arise in relation to the water-lines between the two states, 
and under the management of commissioners representing each 
State, at Mount Vernon, the compact of 1785 was entered into; 
George Mason was one of Virginia's commissioners, and no one 
better knew her rights or was more ready to maintain them : see 
page 53 of Virginia's boundary-line. Miscellaneous Pamphlets. 
Here Smith's Point was substituted for Cinquack. 



21 

By that, "piracies, &c., committed on that part of Chesapeake 
"Bay which lies within the limits of Virginia, or that part of 
"said bay where the line of division from the south point of Po- 
" towmack River, {noxo called Smith's Point,) to Watlcins Point, 
" near the mouth of Pocomoke river, may be doubtful," or 
where the line of division between the two states upon the said 
river is doubtful, &c., are made punishable in a certain way, 
&c., &c., 

Thus, recognizing the south-western boundary of Maryland to 
be on the southern shore of the Potomack, and running from the said 
south point of the Potomac river, (now called Smith's Point,) to 
Watkins Point. 

The people of Virginia conceded in this formal way, this 
line from Smith's Point to Watkins Point, in 1785. They have 
reiterated it again and again, in the various Codes published in 
1849, 1860 and 1874. The following is the last enactment 
on the subject, viz : 

Code of Virginia, 1873, page 110. "Compact and boundary 
between Virginia and 3Iari/land." 

"Commissioners appointed by the General Assembly of the 
State of Maryland, and also of the State of Vii;ginia, having 
met at Monnt Vernon, in Virginia, on the twenty-eighth day 
of March, in the year seventeen hundred and eighty-five, and 
mutually agreed to a compact : 12 Hen., Stat. 50, 1 R. C.,p. 53, 
C. 18 ; the said compact having been confirmed, first by the 
General Assembly of Maryland, and afterwards, on the 3rd day 
of January, 1786, by an Act of the General Assembly of Vir- 
ginia, it is hereby declared, that the said compact remains oblig- 
atory, except so far as it may have been superseded by the pro- 
visions of the Constitution, since formed for the United States ; 
and it shall be faithfully observed and kept by this government 
and all its citizens, so far as may not be incompatible with the 
said Constitution. 

Amongst the articles of the said compact, are the following : 
"Seventh — The citizens of each State respectively, shall have 
full property in the shores of the Potowmack River, adjoining 
their lands, with all emoluments and advantages thereunto 



22 

belonging, and the privilege of making and carrying out 
wharves and other improvements, so as not to obstruct or injure 
the navigation of the river; but the right of fishing in the 
river shall be common to, and equally enjoyed by the citizens 
of both states: provided, that such common right be not exer- 
cised by the citizens of the one state to the hindrance or dis- 
turbance of the fisheries on the shores of the other state; and 
that the citizens of neither state shall have a right to fish with 
nets or seines on the shores of the other, &c., &c. 

Though the commercial regulations set out in this compact 
were rendered nugatory by that clause in the Constitution of the 
United States, giving to Congress the power to regulate com- 
merce between the states, yet the admission that there were 
given points between which the boundary-line ran, is binding 
on the States, unless denied by Congress. 

It belongs to sovereignty to fix boundaries between their respect- 
ive jurisdictions: and when fixed by compact, they become conclu- 
sive upon their citizens, and bind their rights. This power, though 
it can only be exercised with the consent of Congress, still 
resides with the several States: Poole vs. Flee(/er^s Lessee, 11 
Peters 185. 

In the absence of Congressional interference, can A^irginia 
now repudiate that part of the compact of 1785, acknowledging 
Smith's Point as the starting point of the boundary-line across 
the Bay ? We think not. 

But, apart from the binding force of the compact of 1785, 
after this long continued admission or recognition of Maryland's 
right as far as the "shores or strands" on the southern side of the 
Potomac, lasting for nearly a whole century, how is it possible, 
at this late day, for Virginia to maintain a claim, either to the 
north bank of that river, or to the middle of the stream ? 

There cannot be found, we respectfully reiterate, in all the 
mass of papers, documents or historical extracts, anything to 
justify such pretensions. 

The south bank of the Potomac at Cinquack or Smith's 
Point, as agreed on in the Compact of 1785, and recognized 



23 

ovorsinco, being the starting point across the Bay, the boundary 
runs bv " the shortest line" to Watkin's Point. This is our 
line across the Bay. 



PART II. 
LINE OVER THE BAY. 

Passing from the considei-ation of the line upon the Potomac, 
let us examine the southern boundary as called for in the charter. 

This consists of two lines, both of them straight; the one 
being the shortest line from the place called Cinquack, near the 
mouth of the Potomac River, to the "promontory or 
place called Watkins Point/' and the other from "Watkins 
Point," east to the ocean: Charter; Boundary; Miscellaneous, 
page 23. 

Nothing whatever has been found in all the researches for 
information on this subject to show that the line across the bay, 
was ever definitely run and established, either by the concurrent 
action of the colonies, or subsequently by the states. So far as 
documentary evidence goes, there is not a tittle of evidence to be 
found indicating any such settlement. It is asserted, no such 
evidence can be found. 

Upon the words of the charter, and upon the recognition by 
the States, of the terminus agiio, and the terminus ad quern, of the 
line across the bay, that is, Smith's Point, the point of depar- 
ture, and Watkins Point, the point of arrival across the bay, 
it is for you to establish that line from the terms of the 
charter, and from the^indisputed action of the States. It would 
belittle the great question to suppose, that the statements of 
fishermen and oystermen,even if proved by concurrent testimony, 
to be the accounts of old inhabitants, could set up and establish 
the division boundaries for great States in the absence of 
documentary evidence of some kind, to lay the foundation for 
such proof, by showing that some sort of line was run by the 
joint action of the States. 



24 

No reliance, therefore, is placed on any such testimony in the 
absence of proof, either that both or one of the States actually 
had such line run. But wherever action has been taken by the 
State, we shall be made liable to the effect of such action, as we 
shall see. 

Whatever may have been the exact location of Cinquack, (the 
initial point in the charter for the bay line,) is now imma- 
terial, for as we have seen. Smith's Point under the terms of 
the Compact of 1785, and of the subsequent Acts of tlie Legis- 
lature has been recognized as the starting point for this line. 

You have been already referred to the tenth article of the com- 
pact, and the legislation of the States, showing the line of divi- 
sion to be from the south point of Potomac River, now called 
Smith's Point to Watkin's Point : Michlers Instrs Ex. Docs., 
Eep. Bdy., p. 7. 

We must start, therefore, from " Cinquafdv " to run the 
"shortest line" to the promoutory, called Watkin's Point. 
Referring again to 'Smith's' Map, (which was undoubtedly the 
guide for the King and Lord Baltimore, in defining the bounds, 
of the province, as alleged by Lord Mansfield in his bill filed 
for the Penns: Bozman, Vol. 1, p. 107;) it will be seen that 
'Watkin's Point' is distinctly delineated "near the river 
Wighco," and that the "shortest line" from Cinquack would 
strike the southernmost extremity of Watkin's Point. 

It is clear to us that the point to which the line should run 
"was this southernmost extremity of this headland, known as 
the Point. It corresponded exactly with Point Lookout on the 
western shore : See how St. Mary's Co. is laid out : Maryland 
St. p. 102. 

Smith's Point having been substituted by compact for 
Cinquack, the line runs to the place at Watkin's Point where 
the "shortest line" from Cinquack in 1632 would strike it. 

But now, for the first time, in running this "shortest line" 
we are met by one of the perplexities which gave rise to the 
controversy, submitted to your arbitrament. The lower part 
of Smith's Island seems to have been, for many years, under the 
jurisdiction of Virginia, and peopled by a few citizens of that State. 



^5 

Tlie evidence tliscloses, that there were two grants of 1000 
acres each, one from Virginiu, in October, 1GG7, and the other 
from Maryland, iu 1079, the former calling for a divisional 
line where it entered the marsh from Janes Island, and the 
latter callinji- for a divisional line between the States. This is 
really, in our judgment, all the evidence of territorial definition 
in the line between the States, so far as Virginia's action is 
concerned. 

The subsequent grant to Arcadia Melborne, and others, by 
Virginia, covering this and other land, was clearly void, as the 
title to this land had already passed out of Virginia to Henry 
Smith, and all of the land north of the supposed line of divi- 
sion, has been held by title derived from Henry Smith, and 
others. 

Such a grant, therefore, of land, already patented, is void. 
It would be dangerous doctrine to maintain the vitality of a 
subsequent grant: New Orleans vs. United States, 10 Peters 731. 
It will be remembered, that we have shown, that under this 
patent, the land on the west side of Smith's Island down to 
John Tyler's house at Hog Neck was in Maryland. That 
Hoffman, who lived there, had been a Justice of the Peace in 
Maryland, elected in 1853; that John Tyler is assessed for 
house and land and personal property in Maryland, and that 
Johnson Evans at Horse Hammock House, on the east side of 
the island, votes in Maryland, pays taxes in Maryland, and 
takes out license for his store iu Maryland ; so that the people 
livino- on the line from Horse Hammock are considered and 
reputed to be in Maryland by positive acts of citizenship. 

But this line is more clearly and authoritatively defined by 
the action of Maryland, in laying off an election district in 1835 
see report of Handy, et al; Old Va. Ev. p. 287. 

The southern line of that district is shown to have been a line 
from Horse Hammock, \^est to Sassafras Hammock, on the bay 
side: Cullin, Ev. p. 170, of Va. old Ev. 

This line was confirmed by one of Virginia's witnesses, Severn 



26 

Bradshaw, who affirms tliat it was renewed as an election dis- 
trict, in 1853: Severn Bradshaw, old Ev. p. 199. 

John Tyler, living at Horse Hammock House, was a Mary- 
land Justice of the Peace, as far back as 1835. 

The voters, north of Horse Hammock, were registered in 
Maryland : S. Bradsijaw, p. 200. 

For confirmation of this line, reference is also made to the 
evidence last taken, pp. 38, 39, 40, 41, 42, 43, 47, 53 to 58, 63 
and 107 and 109. 

This seems to be the extreme claim of Virginia to the occu- 
pation of and jurisdiction over any part of Smith's Island. It 
is of little value in itself, the land is marshy, and the amount 
of taxes, derived from it, is very minute. 

But whatever it is, it is a possession of Virginia, which inter- 
feres with the "shortest line across from Smith's Point to 
Watkins Point," and we must accept the situation. 

The charter-line from Cinquack to Watkins Point on the 
maps of the present day, would not strike Smith's Island at all, 
and on Smith's map the island had no place, and was not in the 
contemplation of the King and Lord Baltimore at the time ; 
and on Hermann's map, it was put far north of the line from 
Cinquack east to Watkins point; but on some maps the line 
would strike the lower jiart of the island This doubtless gave 
rise to the impression, that the lower part of the island was in 
Virginia. 

But this holding of Virginia stands in the way of the short- 
est line to the southernmost angle of Watkin's Point, where 
such line would strike, and as Virginia claims and insists on her 
right to the part of Smith's Island possessed by her, a line 
should run from Smith's Point to Sassafras Hammock, thence 
to Horse Hammock House, and then to Cedar Straits at the end 
of Watkin's Point, nearest to Smith's Point, and this would 
really be the line of Davidson and iLovitt, who comprehended 
the situation when they made it : Last Ev. Drummond, p. 1 7. 
A crooked line, but Virginia insists upon her riglit to the lower 
part of Smith's Island, based on her possession of it, and we 
cannot resist the title, so made by long possession. 



27 



PART III. 

THE LINE FROM AVATKIN'S POINT TO 
THE OCEAN. 

The charter calls for a right line from " Watkin's Point" to 
the ocean. 

"Watkin's Point" is now known and defined, and looking at 
the map of Smith, it seems hard to understand, how there 
could be any difficulty about its true location. 

But it was made a subject of doubt and disputation prior to 
1668, and the call for the point, as calls for rivers and streams, 
trees and other sensible objects often do, was made the ground 
of uncertainty and controversy. The boundary between the 
United States and the British possessions, under the treaty of 
1783, was defined by rivers and highlands between the waters, 
emptying into the Atlantic, and those which fall into the St. 
Lawrence. Years were s}>ent in the effort to find the true St. Croix, 
which was the initial point of the line. Twice as many years 
were passed in establishing the real highlands, until at last the 
long-vexed north-eastern boundary was settled by compromise. 

Watkin's Point was, as early as the 25th June, 1668, under 
the articles of agreement between Philip Calvert and Edmond 
Scarborough, Commissioners, acting for the respective Colonies 
concluded to be " the j^oint of land, made by the north side of, 
Pocomoke Bay, and south side of Anamessex Bay." The whole 
body of land lying between these two bays was designated and 
recognised as "Watkiii's Point:" Md. Statement, p. 99. 

After examining all that can be said on either side, there 
seems to be no doubt, that Bozman was correct in his conclu- 
sion also, that " Watkin's Point must have been the southern 
promontory of Somerset County, on the Bay, and what niay be 
termed the ■ oautorM icape of Pocomoke Bay : 1 Bozmau's Hist. 
Md. 132. V^fc:^ 



■28 

And Gon. MIchler himself came to the same condnsion, with 
all the light he could obtain : See Michler's Rep.; Rep. By, 
Line, p. 13. 

Whatever part then of that " body of land" was nearest to 
Cinquack, so that the shortest line from the latter point 
across the Bay would strike it, should be the closing point of 
the line across the Bay : but the holding of the lower part of 
Smith's Island by Virginia, as we have seen, may compel the 
board to make a deflection in the line across the Bay, so as to 
take in this part of Smith's Island. Such a course, however^ 
would bring the end of the Bay-line to the same point ; that 
is the southern extremity of Watkin's Point, nearest to 
Cinquack. 

From that spot, then, a line due east to the Atlantic Ocean 
would comply with the terms of the charter, for the remaining 
link of the southern boundary. 

It was maintained by the Maryland Commissioners, hereto- 
fore, that this " promontory" formerly extended to and em- 
braced the southern end of Watt's Island. How far south 
this exteoded at the date of the charter cannot now be known^ 
but the Maryland Commissioners claimed, that, by implication, 
from the terms of the Proclamation of Governor Harvey of 
Virginia on the 4th of October, 1638, this southern end of 
"Watkin's Point" was opposite to the "River Wiconowe, com- 
monly called by the name of Oaancoek, on the eastern side of the 
grand Bay of Chesapeake :'' and that an east line to the ocean 
from that spot was Maryland's true boundary on the eastern 
shore: Harvey's Proclamation, Md, Stat. 72. 

But, to-day, the shortest line from Cinquack or Smith's Pointy 
our recognised starting point, to Watkin's Point, would strike the 
latter at Cedar Straits, as may be seen by inspection of the map, 
compiled by De La Camp from the Miehler Maps, in 1860. 

And from that point by a right line east to the ocean, the 
southern boundary would run as called for by the charter. 

This line as laid down in Dc I^a Camp's Map from Smith's 
Point to . Cedar Straits, is also laid down on Hermann's Map 
of 1673, and on the map of John Thornton and Will. Fisher, 



29 

published between 1695 and 1700, and in the possession of tlie 
j\Iarvh\nd Historical Society, the Evans map of 1755, Pownall's 
map 1770, and on the maps accomi>anying Jefferson's notes in 
1787, and this line is made to continue due east to the ocean in 
conformity with the terms of the charter. It seems clear from 
these maps, that when the compact was made in 1785, this was 
known to be the true southern boundary from Watkin's Point 
to the ocean. 

It was supposed to be a water-line upon Pocomoke Bay, or 
River, as it was then alternately called. It ran from Cedar 
Straits, as it was intended, to the land of the eastern shore in a 
straight line, and until recently, (tiiat is since 1856,) the maps 
" all })laced the north shore of Pocomoke Bay so much too far to 
the north as in some degi-ee to conceal " what now seems to have 
been the Scarborough Calvert line, which line in reality does 
not conform to the charter at all, as will be seen. Pocomoke 
Bay as laid down on Smith's maj), ran west about twelve miles, 
and this water-line, therefore, could not be marked or shown by 
visible points, so that this line, as well as that on the Potomac, 
became a subject of consideration when the Commissioners were 
adjusting the compact of 1785, as the right of navigation and 
of property on Virginia shores had been reserved in the 
Constitution of 1776. As for instance, in the Constitution, 
" except the free navigation of the Potomac and Pocomoke, 
with the property of the Virginia shores or strands, bordering 
on either of the said rivers," &c. : Page 55 of Miscellaneous Doc's. 

And so in the compact, article 10, after speaking of "Piracies" 
on the Chesapeake Bay, &c., "or that part of said Bay where 
the line of division from the south point of Potomac River 
(now called Smith's Point) to Watkin's Point, near the mouth 
of Pocomoke River, may be doubtful, and on that part of 
Pocomoke River, within the limits of Virginia, or where the 
line of division between the two States topon (iiot across) the 
. said river, is doubtful :" Miscellaneous, p. 55, A. 

Marylandresisted, from the first, Virginia's claim to the Poco- 
moke, for in her convention on 30th October, 1776, she claimed 



30 

" almost the whole of the River Pocomoke, &c. : See Virginia 
Documents p. 9. 

Now there could be no difficulty about the division- line " across 
the river'' as now claimed, for it was only 100 yards wide: 
(Wise B. 118) and there are marks and boundaries on either 
side, but the provision was intended to apply to that central 
line through the river or bay, as now called, east from Cedar 
Straits to the main land. 

Indeed, both Maryland and Virginia seemed to recognise this 
line upon the mouth of the Pocomoke River, for Maryland 
claimed "almost the whole river," while Virginia claimed a 
part of it within her limits, but admitted that it was common 
territory: See Va's Acts of Assembly from 1819 to 1866, 
Att'y-Gen'l Daniel's Memorandum; Md. Resolutions of 1776; 
Va. Constitution 1776; Mis. Dois. 53 ; iS'orthern and Western 
B'dy Doc. p, 9. 

So it seems to have been understood at that early day, that 
the mouth of the river, or bay, as called, was held by the two 
States : the northern jaw by Maryland and the southern jaw by 
Virginia, while the fishing (shell-fish included) was common to 
the citizens of both states. 

The binding effect of the Compact of 1785, cannot 
be doubted; for the Supreme Court thus recognises it: "the 
compact, made in the year 1785, between Virginia and Mary- 
land was made by the two States, as States. The same power, 
which established it, was competent either to annul or modify 
it:" City of Geo. Town vs. Alex. Can Co., 12 Peters 96. 

It never has been annulled or modified, and it cannot be, 
except according to its own terms, by consent of both the States : 
See the acts of the States ratifying it. 

But this claim on the part of Maryland to the holding of the 
northern part of the mouth of Pocomoke River is opposed by 
Virginia, because it alleges that such holding militates with the 
true construction of the agreement, made by Philip Calvert for 
Maryland, and Edmond Scarborough of Virginia, in 1668, 
heretofore referred to, and with the long continued acquiescence 



31 

of both the States in that agreement. It is conceded that the 
boundary line so settled, (as far as it was settled) by tlieni as 
commissioners, and ratified by the colonies, cannot now be dis- 
turbed, except upon an allegation of mistake, which must be 
clearly made out : Bhode Island vs. Massa., 4 Howard 591. 

Nor cant*»t it be denied that Philip Calvert, on behalf of 
^Maryland, and Edmond Scarborough on the part of Virginia, 
were empowered "^o determine the location of Watkin's Point,^' 
and to make the boundary line between the two colonies, run- 
ning thence (that is, from Watkin's Point, not across it) to the 
ocean : Md. statement, 100. 

It will be seen from several commissions referred to in the 
Maryland statement, pp. 91 and 92, that Maryland continued 
to claim down to 1668, to Watkins Point, being the " north 
point of the Bay into which the river Wighco, (formerly called 
Wighcocomico, afterwards Pocomoke, and now Wighco-Comico 
again) doth fall exclusively. 

And in erecting Somerset county on 22nd August, ISflfi, f/j ^ J 
Lord Baltimore, in his letters patent thus describes its bounds, 
viz : 

" All that tract of land within our province of Maryland, 
bounded on the south with a line drawn from Watkins Point, 
( being the north point of the bay, into which the river AVighco 
formerly called Wighcocomoco, and afterwards Pocomoke, and 
now Wighcocomoco, again doth fall exclusively,) to the ocean 
on the east, Nanticoke River on the north, and the sound of the 
Chesapeake Bay on the west :" H. H., folio 268. Recorded in 
full in the records of Somerset County, in liber B., fob; Mary- 
land Documents, p. 1. 

In the division of the county into hundreds, January, 1667, 
Annamessex Hundred is thus described, "Beginning at Watkins 
Point, running to the mouth of Merumusco Creek, up the 
westernmost side of the said creek, to Merumusco Dams, and 
from Watkins Point to the north point of Annamessix River," 
&c.: see Worcester, 1742; McMahon 91 ; Maryland Statement, 
page 92. 



32 

It is plain therefore, that Maryland claimed all the land, be- 
tween the Annamessex down to Poeomoke Bay, as Watkins 
Point, up to 1668, and has occupied and covered, by her patents, 
all that territory down to the present time. 

When Calvert and Scarborouy-h came to fix theboundarv-line 
on the eastern shore, they found it necessary to determine the 
true locality of Watkins Point, and having taken a full and 
perfect view of the point of land made by the north side of 
Poeomoke Bay and the south side of Annamessex Bay, conclu- 
ded the same to be Watkins Point. 

This, therefore, was determined to be the point from which 
an east line to the ocean should be run. The line was to run 
"from" this point, not over it. The commissioners say they 
run a line from the said point over the Poeomoke H'lver, &c., to 
the marsh of the seaside, &\\, &c. 

It was necessary to determine also the place of departure of 
that line over the Poeomoke. If it began at a point on the same 
line of latitude as bisi; Annamessix, it would be too high for 
Maryland ; if it ran from the most southern part of W.stkins 
Point, it might be deemed by Scarborough, too low for Virginia, 
and so to-day Avhen its exact point of departure is found, it seems, 
as if by a compromise, they took a point mid-way between the ex- 
tremes, and ran their line across Poeomoke River, from a point 
^' agreeable loith, the extreme part of the westernmost angle or 
said Watkins Point," and this line has marks and boundaries to 
designate it, from the Poeomoke to the sea : Calvert and Scar- 
borough agreement, Md. Statement, 99, 100. 

These marks, east of Poeomoke River, were found by Michler, 
when making his survey in 1859 : see Michler's Rep. Va. 
Boundary-line, p. 11. But says he, on page Kl, "No boundary- 1^ 
line marks of any kind were found wed of the Poeomoke, and 
the inhabitants professed to be in ignorance of the existence of 
any." 

If, then, our long adherence to the Scarborough Line on the 
main land is to be used against Maryland, the possession by 
Maryland of all that part of Somerset County down to Cedar 
Straits and bounded on the south by Poeomoke Sound, should 



S3 

be conclusive in favor of Maryland, so far as the territory is in 
dispute. 

It is conceded, that in cases like this, long-continued posses- 
sion by a State, should go far to establish its title. Possession 
and general recognition of ownership go far to overwhelm 
traditionary reports, or the hearsay testimony, even, of the oldest 
inhabitants. 

And the depositions of the witnesses, who seek to set up im- 
aginary lines across Watkin's Point westwardly, are rebutted 
by the strong presumption growing out of the action of Mary- 
land over all of Somerset County, and the acquiescence of Virginia 
in the same, even if our State did not stand on its impregnable 
ground under its charter and title from the king. 

The " conjuror" Scarborough w^ell knew, that the real " Wat- 
kin's Point" was the southern extremity of Somerset County, at 
Cedar Straits, and was the true initial point on the boundary- 
line ; for it was the point where the closing line of the bound- 
ary, to wit, the " shortest line" from Cinquack would strike 
" Watkin's Point ;" but he knew, also, such line east to the 
ocean would curtail Virginia of much of its patented land, and 
so he was driven to the device of " concluding " the whole body 
of land aforesaid to be "Watkin's Point," and then dividing it, 
as before stated, the line was run " agreeable with" (concurrent 
with) the westernmost angle of the Avhole point. So, it ran 
"from Watkin's Point" to the ocean, but took a specific part of 
that point, with which an " agreeable" or " concurrent" line ran 
east of the Pocomoke River to the ocean. But west of the 
Pocomoke no line was run by them ; no boundary marks made, 
and no agreement had; and from that day to this, Somerset 
County has held its territorial bounds along the north bank of 
Pocomoke Bay, or River, to Cedar Straits, and up Tangier 
Sound to the county's northern line : Bacon's Laws of Md., 
1765, Somerset Co. ; Michler's Report, p. 14. 

And Virginia recognizes this to be the holding of Maryland 
for the last two centuries: see Wise Last Rep. p, 18, Ch. XL 
" The colony of Maryland, as a colony, also confirmed the 



34 

line run by Scarborough and Calvert. Maiyland Council Pro- 
ceedings, Libr. H. H. folio 268, show that in 1666, the county 
of Somerset was laid off on the eastern shore. Its limits then 
described by a line on the south drawn from Watkins Point, 
being the north point of that bay into which the River Wighco 
(meaning the Pocomoke) empties, to the ocean on the east, <fec." 
"This, in effect, was a line from what is called now Cedar 
Straits to the ocean on the east." 

Such holding by Maryland is conclusive, in our judgment, of 
its right to Cedar Straits. 

No human transactions are unaffected by time. Its influence 
is seen on all things subject to change. And this is peculiarly 
the case in regard to matters which rest in memory, and which 
consequently fade with the lapse ot time, and fall with the lives 
of individuals. For the security of rights, whether of states or 
individuals, long possession under a claim of title is protected. 
And there is no controversy in which this great principle may 
be involved with greater justice and propriety, than in a case 
of disputed boundary : Rhode Island vs. Ifass. 4 Howard 639. 

To repeat this proposition : more than two centuries have 
elapsed since Maryland has claimed and held possession of and 
exercised jurisdiction over the whole tract known as Watkins 
Point, between Annamessex Bay and Pocomoke Bay on the 
north and south, and Tangier Sound and Pocomoke River on 
the west and east, and of such a possession without a paper title, 
the Sup. Court in the R. I. case said : " It would be difficult to 
disturb a claim thus sanctioned by time, however unfounded it 
might have been in its origin." 

That the whole of this point of land has been since 1666, con- 
sidered part of Somerset County ; that jurisdiction has been 
exercised by Maryland, its land assessed and taxes collected is 
undisputed, (both before and since the date of the Calvert 
Scarborough agreement,) and it should be considered by this 
board conclusive. Said the Supreme Court in Hundley's Lessee 
vs. Anthony, 5 Wheat. 384. " It is a fact of no inconsiderable 
importance in this case, that the inhabitants of this land have 



k 



35 

b?cn uniformly considered botli by Kentncky and Indiana as 

belonging to the last-mentioned State. No diversity of opinion 

appears to have existed on that point. "'^To cnt the lower part ^ 

of this point off and add it to auothw, would not only disturb ^-^^-^-^^-inr^^ 

all its people and unsettle things, but it would work serious in- ^ 

convenience to them in their relations with their state government. 

"It would be as inconvenient to the people inhabiting this neck 
of land, sei)arated from Indiana only by a bayou or ravine, 
sometimes dry for six or seven hundred yards of its extent, but 
separated from Kentucky by the great river Ohio, to form a 
part of the last-mentioned State, as it would for the inhabitants 
of a strip of land along the whole extent of the Ohio, to form 
a part of the State on the opposite shore :" Same view at page 
381 <'f 5 Wheaton. 

By her charter-title and centuries of jiossession, Maryland, thus 
holding to the north line of the Pocomoke Bay, and Virginia to 
the south, the respective states hold to the middle of the bay or of 
the mouth of the river. This principle cannot be disputed. 

"AVherc a river is the boundary between two nations or 
states, if the original property were in neither, and there be no 
convention respecting it, each holds to the middle of the stream : 
Handleys vs. Anthony, &c., 5 Wheaton 374. 

The same rule was laid down by Judge Story in the case of 
the Schooner Fane, in 3 Mason 149. 

The use of a river or bay by the nations on either side of it, 
must repel the supposition of an exclusive right in either. The 
rule is, that each nation has a right to the "middle of the 
stream." Yattel, Book 1, C. 22, sec. 2. Angell on Tide- 
Avater, p. 7. Tyler on Boundaries, 234. 

We have shown the use of Pocomoke River or Bay by both 
states. It was believed to be secured to both, by the Compact 
of 1785. Reference is asked to the evidence lately taken: 
Gillet, p. 8 ; H. v. Johnson, p. 19 ; Handy, pp. 53, 57 and 58. 

We have maintained that Maryland holds to the Pocomoke 
under her Charter ; but even admitting for the sake of the 
argument, that the Calvert-Scarborough line cut across Somerset 
County, ]Maryland's holding for two centuries down to the 
Pocomoke Sound, would give her a perfect title on the doctrine 



' 36 

of usucaption or prescription, and precisely the same rules 
would ajiply, as if she held under her Charter. Her people 
occupied the land and appropriated the waters, and she is en- 
titled to the middle of the Bay. When the Declaration of 
Independence was made, both the colonies were in the position 
of independent States, neither exercising- exclusive jurisdiction 
over this Bay. They held to the middle of it. Vattel, B. 1, 
ch. 22, see. 3. 

In conclusion, we submit that Maryland has maintained con- 
clusively, at the very least, a line of this character: Beginning at 
low- water mark at the divisional line between the two States of 
Virginia and West Virginia, upon the south-west coast or 
shore of the Potomac River; thence following the said River 
at low-water mark, to all wharves and other im])rovements now 
extending or which may hereafter be extended, by authority of 
Virginia, from the Virginia shore into the said river beyond 
low- water mark : and following the said river around said wharves 
and other improvements to low-water mark on the south-west- 
ern side thereof; and following the said river in the same man- 
ner down to the easternmost angle of Smith's Point at the 
mouth of the said river Potomac, where it flows into the Ches- 
apeake Bay, thence across the Chesapeake Bay to Sassafras 
Hammock on Smith's Island, then east to Horse Hammock 
house, thence to the centre of Cedar Straits, (which is the present 
Lovett-Davidson line,) thence through the centre of Cedar Straits 
to the middle of Pocomoke Bay, and along the middle of Poco- 
moke Bay to a point opposite the beginning of the Calvert and 
Scarborough line, and then east along said line to the ocean. 

Establishing such a line as the true boundary, and securing 
to the citizens of each State equal rights in taking fish and 
oysters, in Pocomoke Bay, or Sound — which they have enjoyed 
from a period of time against which the memory of any living 
man runneth not to the contrary, — you will have discharged, we 
apprehend, your duty with singular fidelity to all the evidence 
in the case, and upon such clear and sound principles, that your 
award will commend itself to all the just and fairniinded people of 
these contiguoiLs and friendly Commonwealths. 




LIBRARY OF CONGRESS 



011 293 643 9 








